Public Prosecutor v Ong Say Kiat

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 12 September 2017
• Neutral Citation: [2017] SGHC 221
• Plaintiff Counsel: Terence Chua and Rimplejit Kaur (Attorney-General's Chambers)
• Docket Number: Criminal Revision No 7 of 2017
• Date: 12 September 2017
• Hearing Date: 20 July 2017
• Subject Matter: Criminal Procedure and Sentencing,Appeal,Appeals,Revision of proceedings,Sentencing,Procedure
• Year: 2017
• Defendant Counsel: The respondent in person.
• Court: High Court (Singapore)
• Citation: [2017] SGHC 221
• Published date: 16 September 2017

Sundaresh Menon CJ: Introduction

Criminal Revision No 7 of 2017 (“CR 7”) was an application by the Prosecution for me to exercise my revisionary powers under s 401 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”) to set aside a sentence of five years’ corrective training (“CT”) that had earlier been imposed on the respondent, and to impose, in its place, a sentence of at least nine months’ imprisonment.

At the hearing, the Prosecution applied to withdraw CR 7. I granted the Prosecution leave to do so. I also granted the respondent leave to appeal out of time and made an order under s 380 of the CPC dispensing with the need for him to file any other documents or written submissions. I treated the appeal as having been heard and allowed the appeal. Accordingly, I set aside the sentence of five years’ CT that had earlier been imposed on the respondent and sentenced him instead to a term of imprisonment of time already served. These are the grounds for my decision.

Background

The respondent pleaded guilty on 4 December 2014 to a single charge of theft in dwelling with common intention under s 380 read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”). The facts giving rise to this charge were straightforward: on 18 September 2014, the respondent and his wife had committed theft of four pieces of apparel with a total value of $220.60 from a store.

When it came to sentencing, what stood out was the respondent’s notable criminal history. Just his theft-related antecedents were as follows:

SN	Conviction date	Offence	Sentence
1	11 September 1998	Theft with common intention	18 months’ probation
2	18 August 2005	Theft in dwelling	4 months’ imprisonment
3	3 October 2008	Theft in dwelling	4 months’ imprisonment
4	21 June 2013	Theft	1 week’s imprisonment
5	30 June 2014	Theft in dwelling with common intention	9 weeks’ imprisonment

The respondent also had various other antecedents relating to drug and unlicensed moneylending offences, amongst others.

Upon the respondent’s conviction of the offence in question, the Prosecution urged the District Judge to call for a pre-sentencing report as to the respondent’s suitability for CT. The District Judge did so. The report indicated that the respondent was suitable for CT. When the matter was heard again on 31 December 2014, the Prosecution accordingly submitted that the respondent had a clear tendency towards crime and that a term of CT would be appropriate. The District Judge, having considered the matter, sentenced the respondent to five years’ CT on the same day. Five years was (and is) the minimum term of CT mandated by s 304(1) of the CPC.

On 3 March 2017, the Prosecution was informed of the respondent’s intention to file a criminal motion to appeal against his sentence out of time. The Prosecution then reviewed the sentence of five years’ CT that had earlier been imposed on the respondent. By this time, the three-judge panel of the High Court had issued its decision in Sim Yeow Kee v Public Prosecutor and another appeal [2016] 5 SLR 936 (“Sim Yeow Kee”), which laid down guidelines applicable to the imposition of CT. The Prosecution considered the guidance provided in Sim Yeow Kee and concluded that the sentence of five years’ CT that it had initially sought, and that had earlier been imposed on the respondent, should not be upheld.

CR 7 was therefore filed by the Prosecution on 4 May 2017. By it, the Prosecution sought to persuade me to exercise my revisionary powers under s 401 of the CPC to: (a) set aside the sentence of five years’ CT that had earlier been imposed on the respondent; and (b) impose, in its place, a sentence of at least nine months’ imprisonment backdated to 9 October 2014, the date of the respondent’s remand; and/or (c) make any other order which may be appropriate in the circumstances. The Prosecution contended that while the respondent’s antecedents and circumstances weighed in favour of the imposition of CT at the time the respondent was sentenced in the light of the then-prevailing jurisprudence, following the decision in Sim Yeow Kee, the sentence of five years’ CT that had earlier been imposed on the respondent appeared to be “unduly disproportionate compared to the likely term of regular imprisonment that would otherwise have been imposed” [emphasis in original]. The Prosecution submitted that this therefore resulted in “serious injustice” to the respondent and that, accordingly, the sentence of five years’ CT that had earlier been imposed on the respondent should be set aside and substituted with an appropriate and backdated sentence of imprisonment.

Whether the respondent would have been sentenced to five years’ CT under the framework laid down in Sim Yeow Kee

The first step in the analysis was to consider whether the respondent would have been sentenced to five years’ CT under the framework laid down in Sim Yeow Kee. I treated this as a threshold issue because if it was answered in the affirmative, then that would have been the end of the matter since there would then have been no basis at all for me to intervene.

In Sim Yeow Kee, the court devised a two-stage sentencing framework to be adopted when considering whether to impose a sentence of CT. At the first stage, the court ascertains whether the offender meets the technical requirements for CT to be imposed, as set out in s 304(1) of the CPC (Sim Yeow Kee at [86]). There was no doubt that the respondent satisfied these technical requirements in the present case.

At the second stage, the court considers whether it is expedient with a view to the offender’s reformation and the prevention of crime that he be sentenced to CT (Sim Yeow Kee at [87]). This involves a three-step framework.

First, the court considers the imprisonment term that would likely be imposed on the offender in the circumstances of the case. Here, the court is assessing the sentence of imprisonment that it would likely impose on the offender for the offence that is before it, in the event it decides not to sentence the offender to CT. In this context, the court should take into account: (a) the principle of escalation; and (b) the consecutive sentence exception (Sim Yeow Kee at [99]). Either or both of these principles may be invoked in many of these cases, given that a necessary precondition to the imposition of CT is that the offender must meet the technical requirements I have referred to at [10] above. Those requirements will generally point towards a pattern of criminality based on the offender’s antecedents. This is what makes it appropriate to consider CT as a sentencing option in that the generally longer duration of CT might be justified by, among other things, the greater measure of specific deterrence that this might bring to bear on a recalcitrant offender. However, the court noted in Sim Yeow Kee that the objective of specific deterrence could also be met by increasing the sentence of imprisonment (that is, the principle of escalation) or by running multiple sentences of imprisonment consecutively, where this is an available option and thought to be warranted in the circumstances (that is, the consecutive sentence exception).

In the present case, the Prosecution cited various precedents where sentences of between six and 15 months’ imprisonment had been imposed in somewhat similar circumstances, and submitted that an appropriate sentence would be at least nine months’ imprisonment. It is not necessary for me to refer to these precedents in detail. The respondent had spent over two and a half years in prison by the time CR 7 was heard on 20 July 2017, and this was even before his time spent in remand was taken into account. If the respondent was to be incarcerated any longer, this would have had to be on the basis of a sentence of imprisonment of around four years (after taking into account the likelihood of remission). The sentence urged by the Prosecution did not even approach this. By way of comparison, the respondent’s wife, who was his accomplice and who also had theft-related antecedents (although these were fewer in number), had been sentenced to imprisonment for a term of two months. It therefore seemed clear to me that, even after applying the principle of escalation, the sentence of imprisonment that would likely have been imposed on the respondent would have been for a duration that was far lower than four years. Perhaps, at its highest, it might have been as high as nine months, which was the minimum sentence urged by the Prosecution.

Next, the court considers, at the second step, whether the offender qualifies for the Mandatory Aftercare Scheme (“MAS”). If the MAS is applicable and if the court is of the view that it would benefit the offender in question, these factors could cumulatively militate against the imposition of a sentence of CT (Sim Yeow Kee at [101]–[102]).

The Prosecution submitted that the respondent would have qualified for the MAS. With respect, I did not think that this was entirely correct. The circumstances in which the MAS is applicable are set out in s 50U of the Prisons Act (Cap 247, 2000 Rev Ed) (“PA”). Relevantly for present purposes, s 50U(1)(c) of the PA states as follows:

Application

50U.—(1) This Division applies where — … (c) the prisoner’s sentence for the offence, aggregated with any other consecutive term of imprisonment (excluding a default sentence) to which he was sentenced, is longer than the minimum sentence (if any) which, at the time the offence was committed, is prescribed in the First Schedule in relation to the offence; …

…

Under the First Schedule of the PA, the “minimum sentence” prescribed in relation to an offence under s 380 of the PC is one year. Even going by the Prosecution’s submitted sentence of at least nine months’ imprisonment, this would...